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2. The instant application under Sections 438/442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, read with Article 227 of the Constitution of India, has been filed assailing the order dated 11.08.2025, passed by the learned Special Judge (POCSO), Lakhimpur, in Special POCSO Case No. 143/2025, arising out of Lakhimpur Police Station Case No. 54/2025, registered under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, 2012 (hereinafter referred to as POCSO Act), though the charge-sheet was submitted under Sections 75(2)/64(1) of the BNS, 2023, but the learned Special Judge (POCSO), Lakhimpur framed the charge under Sections 76/65(1) of the Page No.# 3/26 BNS, 2023, read with Section 4 of the POCSO Act. The petitioner has also assailed the order dated 26.06.2025, passed by the learned Sessions Judge, Lakhimpur, in Sessions Case No. 93/2025 (corresponding to Special POCSO Case No. 143/2025), whereby the learned Sessions Judge, Lakhimpur, transferred the case to the Court of the learned Special Judge (POCSO) with a direction to register the same as a POCSO case and proceed with the trial after determination of the age of the alleged victim as per law.

9. The learned counsel for the petitioner submits that the Special Court under the POCSO Act has been established in terms of Section 28(1) of the POCSO Act, which is not a court subordinate to the Sessions Court. Therefore, the direction issued by the learned Sessions Judge, vide order dated 26.06.2025 to register the case as a POCSO case is beyond its jurisdiction and not sustainable in law. He submits that vide order dated 26.06.2026, the learned Sessions Judge, Lakhimpur directed the learned Special Judge (POCSO) to register a case under the POCSO Act and to proceed with the trial after determining the age of the alleged victim girl. Pursuant thereto, the learned Special Judge (POCSO) registered the instant POCSO case and framed charges under Sections 76/65(1) of the BNS read with Section 4 of the POCSO Act. Therefore, he submits that the entire trial has been vitiated as it has proceeded on the basis of an erroneous direction passed by the learned Sessions Judge, Lakhimpur. He submits that since the Court of the learned Special Judge (POCSO) is not subordinate to the Sessions Judge, such direction issued by the learned Sessions Judge, Lakhimpur, is beyond his jurisdiction, and therefore, the order dated 26.06.2025 as well as the order dated 11.08.2025, whereby charges were framed against the petitioner under the POCSO Act, are liable to be set aside.

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25. Coming to the next issue, it is seen from the record that after receipt of the case record from the Sessions Court, the learned Special Judge (POCSO), vide order dated 07.07.2025, directed the victim girl to produce her Birth Certificate or School Certificate on the next date fixed and accordingly fixed 16.07.2025 for production of the same/further hearing on the bail petition/CC. However, on 16.07.2025, since notices were not properly served upon the informant and the victim, the matter was refixed for 18.07.2025. Ultimately, on 21.07.2025, upon receipt of notice, the victim girl appeared before the Court. However, from the record of Special POCSO Case No. 143/2025, this Court could not find any material to show as to whether any Birth Certificate or School Certificate was actually produced by the alleged victim girl, or whether any other material was considered by the learned Special Court (POCSO) for determination of the age of the victim girl other than the aforesaid statements under Sections 181 and 183 of the BNSS. It is seen from the impugned order dated 11.08.2025 that after hearing the learned counsel for both parties and upon perusal of the materials available on record, including the Case Diary submitted by the Investigating Officer, the learned Special Court (POCSO) came to a prima facie finding that sufficient grounds were available for presuming that the accused, namely Asadul Islam, has committed offences under Sections 76/65(1) of the BNS and Section 4 of the POCSO Act. Accordingly, charges under the aforesaid provisions of law were framed against the petitioner.

37. In view of the aforesaid, considering the facts involved in the present case, this Court is of the considered opinion that the Special Court (POCSO), Lakhimpur should first consider and determine the age of the alleged victim girl and thereafter, proceed with the trial under the POCSO Act, if the victim is found to be a minor, or else, proceed with the trial under Section 76/65 (1) BNS as the Special Judge(POCSO) is having the powers of a Sessions Court. Therefore, none of the impugned orders, i.e., 26.06.2025 and 11.08.2025 are interfered with by this Court. The petitioner is directed to approach the Court of learned Special Judge (POCSO), Lakhimpur, in connection with Special POCSO Case No. 143/2025, arising out of Lakhimpur Police Station Case No. 54/2025 and file an appropriate application before the said Court within a period of three (3) weeks from the date of passing of this judgment and order, for determination as to Page No.# 26/26 whether the alleged victim girl was a minor or a major at the time of the alleged occurrence, for which the petitioner is required to be tried under the POCSO Act.